Awuku, R (on the application of) v Secretary of State for the Home Department

On an ex parte or without-notice application, solicitors and counsel owe the court the highest duty of disclosure. They must place before the judge all material facts, including matters that tell against the relief sought and any adverse findings or procedural history. The duty is especially important where urgent removal applications are made and the court must decide applications quickly. Failure to disclose material matters, or failure to comply with prescribed court forms, may constitute a grave breach and may justify referral to the Solicitors Regulation Authority.

The Divisional Court considered three immigration judicial review applications concerning urgent or ex parte applications to stay removal. In Hamid, a renewed application failed to disclose an earlier application and its rejection. In Murugesapillai, the application omitted the claimant’s adverse credibility finding, the refusal to admit a late appeal and the absence of a pending appeal. In N, material adverse matters concerning the credibility finding and alleged fresh evidence were not disclosed. The court adjourned the Awuku matter for further inquiries.

1. Duty of disclosure. On an ex parte or without-notice application, an advocate or other officer of the court must make full and proper disclosure of all material facts, including points adverse to the relief sought. This duty is particularly important in urgent applications to stay removal.
2. The applications in Hamid, Murugesapillai and N involved serious failures to disclose material adverse matters. The court also emphasised compliance with prescribed forms and the need to explain urgency properly.
3. In Hamid, the solicitor was required to report training measures to the Solicitors Regulation Authority. The other cases were marked as involving grave failures, with a warning that future breaches would ordinarily result in referral. The Awuku matter was adjourned for further inquiries. Mr Justice Cranston agreed.

Not an appeal. The judgment referred to the earlier decision in Hamid, [2012] EWHC 3070 (Admin) , and the renewal decision in Murugesapillai, [2012] EWHC 3219 (Admin).